ADJ-00002625

Complainant

Respondent

Anonymised Parties

A Sound Engineer

A Public House

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997.

CA-00003629-001

1^st April 2016

The Complainant had submitted a complaint that the Respondent had not afforded him his annual leave and public holiday entitlements in accordance with the provisions of the Organisation of Working Time Act 1997.

The Complainant commenced employment with the Respondent on 22^nd May 2014, it was agreed that his weekly rate of pay was €320.00, based on 17 hours per week his hourly rate was €18.82c.

The were two hearing dates, the first one in Gorey, Wexford on 26^th July 2016 and the second one on 28^th March 2017 in Dublin.

At the end of the first date of hearing on 26^th July 2016 and following detailed discussions the Respondent accepted that the Complainant had not been paid his proper entitlements in respect of annual leave and public holidays and they sought a an adjournment and a period of time to allow them to then calculate the proper calculations and monies due to him and further stated they would in addition pay him a sum in compensation for the breach of his rights under the Organisation of Working Time Act 1997.   The parties agreed to attempt to sort matters out directly between themselves and sought an adjournment for that purpose.   The Complainant undertook to confirm by the end of August 2016 if the matter was resolved and the complaints withdrawn or if a resumed hearing was required.     The Complainant was in contact with the WRC between September and November 2016 and he ultimately requested a resumed hearing, stating the complaints had not been resolved.   The Respondent did not attend the resumed Hearing on 28^th March 2017 and they sent no submissions.

The Complainant submitted that he did not receive from the Respondent his proper and appropriate payments in respect of annual leave and public holiday entitlements.   He provided detailed information and submissions in this respect.

The Complainant said he was seeking his proper and appropriate annual leave and public holiday entitlements and compensation for breach of his rights under the Organisation of Working Time Act 1997 as provided for in that Act.

As stated above the Complainant a the end of the first date of hearing on 26^th July 2016, agreed to the request of the Respondent to adjourn the matter to allow both parties an opportunity to attempt to resolve the matters directly, including calculating monies due and compensation for breach of his rights under the 1997 Act.

At the resumed hearing, at which the Respondent did not attend, the Complainant said that the parties had been in contact and that Respondent informed him that he was due the sum of €1,747.20c in relation to underpayments in respect of annual leave and public holiday entitlements (€1,195.20c in respect of annual leave and €552.00c in respect of public holiday).

The Complainant said that the Respondent gave an undertaking to pay him that sum and a further sum of €2,000.00c in compensation for breach of his rights under the 1997 Act.

The Complainant said that however the Respondent did pay him the sum of €2,000.00c, but did not pay him the other sum of €1,747.20c.

The Complainant sought a favourable decision.

At the first day of the Hearing on 26^th June 2016, the Respondent said they believed they had calculated the payments for annual holidays and public holidays properly   - and they said that they were unable to obtain definitive advice on how to calculate holiday pay for someone who worked the way the Complainant worked.

Following detailed discussions on 26^th June 2016, the Respondent said they accepted and acknowledged that they had not paid the Complainant his full and appropriate annual and public holiday pay and that accordingly they were in breach of the Complainant’s rights and entitlements under the 1997 Act.   The Respondent sought an opportunity to calculate the appropriate payments due to the Complainant and also appropriate compensation to be agreed with the Complainant.   The Complainant agreed to attempt to do this and gave a commitment to notify the WRC of the outcome of this process and whether the matter was settled and withdrawn or he required a resumption of the Hearing.

The Respondent did not attend at the resumed hearing on 28^th March 2017 and they sent no submissions nor made any contact with the WRC in that respect.

I have carefully considered the evidence and submissions made and I have concluded as follows.

At the first date of hearing on 26^th June 2016, following some discussions, the Respondent acknowledged that that they were in breach of the Complainant’s rights and entitlements under the 1997 Act in relation to annual leave and public holiday entitlements.   Accordingly I find that the complaints under Section 27 of the Organisation of Working Time Act 1997 in relation to annual leave entitlement under Sections 19, 20 and 23 of the 1997 Act and in relation to public holiday entitlements under Sections 21, 22 and 23 of the 1997 are well founded and they are upheld.

As the Respondent was not present or represented at the resumed Hearing on 28^th March 2017, I must accept the uncontested evidence of the Complainant at that resumed Hearing.

Based on the foregoing findings I declare that the complaints under Section 27 of the Organisation of Working Time 1997 in relation to complaints about breaches of the Complainant’s rights and entitlements under Sections 19, 20, 21, 22 and 23 of the 1997 Act in relation to annual leave and public holiday entitlements are well founded and they are upheld.

As stated above, under findings, I am accepting the uncontested evidence of the Complainant at the second day of Hearing, 28^th March 2017, including the sum of money already paid to him by the Respondent in relation to these matters and I am taking it into account in the redress awarded.

In accordance with the provisions of Section 27(3)(c) I now require the Respondent to pay the Complainant compensation in the sum of €1,7000.00c within 6 weeks of the date of this decision.